Medical marijuana a new world for Connecticut employers

By Aaron Berkowitz berkowitza1@owls.southernct.edu

Published
5:51 pm EDT, Sunday, June 1, 2014

File photo: Connecticut Governor Dannel P. Malloy at the podium, with State Representative Steve Dargan, right, during a press conference announcing that four applicants have been chosen as the first-ever producer of medical marijuana in Connecticut Tuesday January 28, 2014 during a press conference at the West Haven site at 400 Frontage Road in West Haven of one of the producers, Advanced Grow Labs, LLC. less

File photo: Connecticut Governor Dannel P. Malloy at the podium, with State Representative Steve Dargan, right, during a press conference announcing that four applicants have been chosen as the first-ever ... more

Photo: (Photo By Peter Hvizdak - New Haven Register)

Photo: (Photo By Peter Hvizdak - New Haven Register)

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File photo: Connecticut Governor Dannel P. Malloy at the podium, with State Representative Steve Dargan, right, during a press conference announcing that four applicants have been chosen as the first-ever producer of medical marijuana in Connecticut Tuesday January 28, 2014 during a press conference at the West Haven site at 400 Frontage Road in West Haven of one of the producers, Advanced Grow Labs, LLC. less

File photo: Connecticut Governor Dannel P. Malloy at the podium, with State Representative Steve Dargan, right, during a press conference announcing that four applicants have been chosen as the first-ever ... more

Photo: (Photo By Peter Hvizdak - New Haven Register)

Medical marijuana a new world for Connecticut employers

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Branford Planet Fitness owner Jerry Mastrangelo said he feels good about what has yet to come for the medical marijuana dispensary that will open next door on East Main Street, and he would hire someone who has a medical marijuana card.

“If someone happens to be taking it for pain, discomfort or a disease, then I think that it’s fine,” said Mastrangelo.

“A drug test is not a requirement of employment, so for all I know, somebody I currently employ or that works for another business may have a card,” he said.

Across the state, it is a changing world when it comes to employers learning to understand the law on palliative use of marijuana, according to Stephen Lattanzio, an attorney with the state Department of Labor.

“The thing we do know: This should be treated exactly like any other prescription drug,” Lattanzio said. “It is a legal prescription drug (in Connecticut).”

However, Lattanzio said, it is important to note, that just like any other prescription drug — or illegal substance — employers can regulate that employees cannot be intoxicated at work.

Lattanzio said while the law is designed “to apply equally” to workplaces, different businesses will have to consider the type of work done, as using heavy machinery or driving is different than filing.

“It is up to the employer to determine what they want to do,” he said. “I don’t know what employers are actually doing.”

But when it comes to businesses that have drivers, for instance, he said, if a test were to come back positive, “I assume they are going to err on the side of not letting the person drive.”

Mike Lawlor, undersecretary for criminal justice policy and planning for Gov. Dannel P. Malloy, said that the state law on palliative marijuana protects workers, but jobs regulated by the federal government, such as certain types of trucking, are not covered by the state law.

In such cases, it is clear under federal law that “if you test positive, you can no longer have this job,” he said. “We can’t repeal federal law.”

For jobs that are not regulated under federal law, use of palliative marijuana is “another legitimate medical option available,” Lawlor said.

The state statute on “palliative use” of marijuana says that “no employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under” the law.

It adds, however, “Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”

Lawlor said that as far as determining a state of “intoxication,” an employer would look for symptoms, such as disorientation or “uncharacteristic deficiencies,” and it is up to the employer “to determine that you can’t do your job — it does not matter what is causing your intoxication.”

“The law doesn’t give you a free pass to be high at work; for any drug, that doesn’t change,” he said, noting that there are other prescription medications that could cause such symptoms.

Lawlor said employers set the standards for the way employees conduct themselves in the workplace and they determine disciplinary actions used on employees who fail drug screenings.

“Alcohol is legal, too, but if an employee shows up drunk or is under the influence there will most likely be a problem with the employer. If it’s affecting your work, it could cost you your job, but marijuana is tricky because it stays in your system for a long time. Just because you test positive for it does not mean you are under the influence,” said Lawlor.

Yet, “Just because you have a marijuana card does not mean you can show up at work stoned; if you can’t do your job, you can’t do your job,” he said.

“It could make you unfit to do your job,” he said.

Lawlor also said the dispensaries in Connecticut will be much more discreet than what has been seen in other states.

“If you see some of the dispensaries in other states you may see signs with neon green marijuana leaves. In Connecticut, the dispensaries will be much more like what you’re accustomed to seeing at your local drug store,” Lawlor said. “You would never know the store was distributing marijuana unless you have a card and are supposed to be there.”

Connecticut Business and Industry Association’s Human Resource Counsel Mark Soycher said policies drawn up by employers regarding the hiring of people with medical marijuana cards in the state could vary between businesses. One business might not inquire about a person’s medical card or conduct a pre-employment drug screening, while other employers could use their option to test the applicant or current employee. Soycher said if an employee’s drug test comes up positive, it is the individual employer’s decision as to how they handle it.

“There’s no law that says a private Connecticut employer needs to do a pre-employment drug test. The law permits employers to do pre-employment testing or testing current employees if there are signs of impairment,” said Soycher.

Lawlor said a positive test under state law would not be a basis for firing a worker, though it could be for those regulated under federal law.

The law also says the protection from prosecution and arrest does not apply to palliative use of marijuana (ingestion of marijuana) on a motor bus, school bus or any other moving vehicle, in the workplace, on any school grounds or any public or private school, dormitory, college or university property, in any public place, or in the presence of a person under the age of 18.

Lawlor said that the law does not protect those on college campuses, but what an individual college will do “is up to them; there’s no guarantees.”

Department of Consumer Protection Commissioner William M. Rubenstein in April announced the locations of the first six dispensary facilities authorized by the state Medical Marijuana Program, including the one in Branford.

“With the selection of dispensary facilities, all necessary pieces of the medical marijuana program are in place and we are poised to provide patients with a safe and secure source of needed medicine,” Rubenstein said in a release. “As retail points from which products are dispensed and educational materials are provided to patients, the dispensary facilities will be the public face of Connecticut’s medical marijuana program, and therefore, careful thought and deliberation went into selection of the most qualified applicants.”

Claudette Carveth, a spokeswoman for the consumer protection department, said the agency does not administer the section of the law on employment.

According to drugwarfacts.org, as of 2011, 71 percent of the businesses surveyed do some form of drug testing, whether it is a urine test, breath alcohol test, saliva examination or a blood test.

According to state law in Colorado, an employee can still be fired for a positive drug test for marijuana, even if he or she possesses a medical marijuana card. The employers are in control.

Soycher also noted the state’s strict policies are to prevent excessive distribution and to keep cards from getting into the hands of people who plan to use marijuana for recreation.

Businesses that refuse to hire an applicant with a “failed drug test” who possess a medical marijuana prescription for a disease such as Parkinson’s or epilepsy could face legal challenges, Soycher said.

“The underlying conditions for which the marijuana is prescribed could constitute a disability, which would protect them under discrimination laws,” said Soycher.

There is no insurance company that covers the purchase of medical marijuana at this time. There is a list of diseases that make patients eligible for the card, said Soycher.

The dispensary in Branford requires patients to schedule appointments in order to pick up their prescriptions, said Mastrangelo.

“It’s not the type of thing where you will see people outside smoking joints in their car,” said Mastrangelo.

He supports the opening of the dispensary and said he doesn’t think it will affect business at Planet Fitness at all.

“As people become more educated on what’s to come and see how it is regulated, I think they will begin to see more of the benefits,” said Mastrangelo. “Anyone who does have a card is going to be prescribed by a physician. This isn’t a black market deal where people are smoking marijuana indiscriminately.”

Soycher said the drug being prescribed to patients is strictly for the benefit of those in need.

“The system in place is intended to treat this (drug) as an additional tool for medical practitioners to use in assisting patients dealing with medical conditions,” said Soycher. “Rather than turning it into a joke where it’s like ‘go get your pot if something hurts.’”

While there remain issues of practice to be discovered as palliative marijuana prescriptions are issued, “the general sense” is that the law is “one of the best-crafted palliative marijuana laws in the country,” Lattanzio said.

The same section of the state statute that addresses employers protects the rights of tenants and students who are a qualifying patient or primary caregiver under the law. “No school may refuse to enroll any person or discriminate against any student solely on the basis of such person’s or student’s status as a qualifying patient or primary caregiver,” and no “landlord may refuse to rent a dwelling unit to a person or take action against a tenant solely on the basis of such person’s or tenant’s status” under the law.